5 766 
B8 
892 
°py l 


Cerneau Masonry Legal 


:NEV.’ YORK 


-IN- 


OHIO. 

And Elsewhere About the Globe. 




Grand Lodges have no authority 
over the “Cerneau” Rite nor anv le- 

J 

gal right to prohibit Master Masons 
from becoming members thereof. 

-«<> <>..- 


THE CELEBRATED GOODALE LODGE 
INJUNCTION CASE. 


DECISION IN FULL 

BY ALL THE 

JUDGES OF THE ClR(’LIT COURT OF FRANKLIN COUNTY, OHIO. 















SUPREME COURT OF LOUISIANA 


No. 19,175. 


M. W. BAYLISS 
versus 

THE GRAND LODGE OF THE STATE OF LOUISI¬ 
ANA. 


Appeal of M. W. Bayliss, Plaintiff, From the Judgment 
Rendered in the Civil District Court, for the Parish 
of Orleans, E. K. Skinner, Judge of Division C. 


SYLLABUS. 

Where a masonic organization, through its regularly con¬ 
stituted head or agent, acting within the apparent 
scope of his authority issues a large number of 
printed circulars in which he mentions the head of 
a rival organization by name, and calls upon his 
craft not to accept the degrees “peddled by this 
clandestine pretender ,’ 9 and urges them to “crush 







2 


this interloper in his incipiency” and when the same 
result in view, i. e., to prevent his craft from joining 
this rival body could have been obtained without 
using expressions which were entirely gratuitous and 
uncalled for, and these expressions were intended 
to bring said person into public contempt, ridicule 
or obloquy—the corporation cannot escape liability 
on the pleas of want of authority in the agent, jus- 
tification where not proven and privilege, or that the 
words were not libelous. 


STATEMENT OF THE CASE. 


May It Please the Court: 

Mr. Major W. Bayliss, a citizen of the City of Washing- 
ton, D. C., sues the Grand Lodge of the State of Louisiana 
a masonic corporation created by an act of the Legislature 
of this State, for fifty thousand dollars damages for the 
publication of libelous edicts or circulars issued by said 
Grand Lodge through its Grand Master. In said edicts 
the plaintiff is called by name ‘‘one M. W. Bayliss, hail¬ 
ing from Washington D. C.” and the Grand Master 
states that he has been advised by worthy brethren that 
a considerable number of Master Masons, members of 
lodges under our jurisdiction have received or accepted or 
had communicated or conferred upon them the degrees 
“peddled” by this clandestine pretender, appeals “to all 
faithful brethren to crush this interloper in his incipiency 
and declares the body of which Mr. Bayliss is the head, to 
be bogus, spurious and clandestine.” 

rrenown 

'•IN H 1&1* 



3 


For the injury to his reputation as an honest man and 
to his social standing, Mr. Bayliss claims the sum of forty 
thousand dollars damages and for the mortification and 
humiliation coupled with worriment of mind over the 
disgrace inflicted by these libelous edicts, he claims he 
has suffered damages in the sum of ten thousand dol¬ 
lars. (Tr., pp. 40, 41, 42.) 

The defendant filed an exception of vagueness, which 
was overruled. An exception of no cause of action was 
filed, coupled with an answer which “denied all and sin¬ 
gular the allegations in plaintiff’s petition contained,” 
(Tr., p. 11), pleaded justification, (Tr., p. 17) and claimed 
that the circulars were privileged (Tr., p. 18). The excep¬ 
tion of no cause of action being overruled, an amended an¬ 
swer was filed on March 23rd, 1909 in which were filed an 
exhibit (Tr., p. 23) purporting to be an extract from the 
report of the Grand Master to the Grand Lodge at its 
session of February 1st, 1909, and a report by the Com¬ 
mittee on Masonic Law and Jurisprudence. 

Plaintiff then filed a motion to show cause why the de¬ 
fendant should not be made to elect as to which of the 
pleas set forth in its answer it would adopt as its de¬ 
fense to plaintiff’s petition, having pleaded a general 
denial, a justification and claimed the circulars were 
privileged. 

The motion was overruled with written reasons for 
judgment. (Tr. p. 28.) 

Before the opening of the case, counsel for plaintiff 
again moved the Court to compel the defendant to elect 
which defense they intended to rely upon; having pleaded 


4 


a general denial, a justification and privilege. Counsel 
for defense thereupon admitted the issuance of the cir¬ 
culars, pleaded justification, admitting the truth of what 
plaintiff averred; but denied that Mr. Bayliss suffered 
any injury. The Court refused to order defendant to 
elect, ruling that the plea was a general denial and the 
defense was justification. (Tr. p 33.) 

With the objections noted (Tr., pp. 59, 161) and over¬ 
ruled and bill of exceptions reserved, defendant’s testi¬ 
mony was heard in an attempt to prove justification, and 
that plaintiff suffered no injury, in accordance with ad¬ 
missions of defendant’s counsel and ruling of the Court. 


THE EVIDENCE. 


The plaintiff and appellant, M. W. Bayliss, a citizen of 
the City of Washington, D. C., is a Master Mason in the 
order of Free and Accepted Masons. He is in good stand¬ 
ing in a Blue Lodge of said Order, which Blue Lodge is 
in good standing in a Grand Lodge which, in turn, is in 
good standing and fraternal relations with the Grand 
Lodge of Louisiana, appellee. 

The appellant, M. W. Bayliss, is the Sovereign Com¬ 
mander, that is to say a chief officer, in the “ Supreme 
Council of Sovereign Grand Inspectors General, Thirty- 
third and last degree of the Ancient and Accepted Scot¬ 
tish Rite of Freemasonry, for the United States of Ameri¬ 
ca, their Territories and Dependencies, Orient of New 


York.” This Rite is duly incorporated under the laws 
of the United States in force in the District of Columbia. 
The Rite he represents is not in affiliation with the 
“Southern Jurisdiction Rite,” nor with the “Northern 
Jurisdiction Rite” of Scottish Rite Masonry, nor with the 
Grand Lodge of Louisiana, a corporation of this State, 
created by Act of the Legislature of 1816. The Grand 
Lodge of Louisiana recognizes the masonic legitimacy of 
the Northern Jurisdiction Rite, and also of the Southern 
Jurisdiction Rite with which its members affiliate. 

In January or early part of February, 1908, Mr. Hen¬ 
derson, one of the subordinate officers of the Rite of 
which Mr. Bayliss is the head, visited New Orleans with 
the view of planting their Rite among the Master Masons 
of Louisiana, none but Master Masons being eligible to 
membership, and he initiated a dozen or more with the 
view of organizing a “consistory” a subordinate lodge of 
his Rite. Some question arose as to whether Master Ma¬ 
sons in Louisiana could consistently join this particular 
Rite, and the plaintiff sought and obtained a conference 
with Mr. J. C. Drew, the Grand Master of the Grand 
Lodge of Louisiana, on this subject, and the Grand Master 
promised him that he would give him a hearing before a 
committee or before the Grand Lodge, (Tr., p. 163) and 
the plaintiff left with that understanding (which is not 
denied) for his home in Washington. 

It appears by the record that some correspondence was 
had between Germania Masonic Lodge No. 46, in this City 
and the Grand Master, and the edicts which form the 
basis of this suit were issued and published by the Grand 
Master. Mr. Bayliss, instead of getting information as 


6 


to his hearing on the merits of his Rite received these 
publications and he wrote Pamphlet D 2 in explanation 
of the circumstances and complained of the Grand 
Master’s failure to keep his promise. 

The edicts on which this suit is based are in evidence, 
proved and admitted, (Tr., p. 23) to have been issued 
by the Grand Master, countersigned and sealed by the 
Grand Secretary of the corporation in their official capa¬ 
city, and within the scope of their authority. (Tr., p. 
198.) 

The bill for the printing of one thousand of these cir¬ 
culars is in evidence and proved to have been paid by 
the corporation.. The original edict was sent to the 
printer. (Tr., pp. 187-8.) The edicts were republished in 
several masonic magazines throughout the United States. 

The defendant relies on the offer of ex parte reports 
from Grand Lodges of various States to prove that the 
words complained of are common expressions understood 
by all Masons, but more particularly and purposely (and 
in spite of the ruling of the trial Judge and admission 
of counsel for defendant Tr., pp. 121 and 122) to show that 
the Rite represented by Mr. Bayliss was not recognized 
by the Grand Lodge of those several States. And this 
had its effect on the mind of the Judge a quo. 

The defendant also offered in evidence a pamphlet 
(D 2) published by Mr. Bayliss, an answer to the edicts 
of the Grand Master, for the purpose of showing that Mr. 
Bayliss had retaliated in kind. It is to be noted here that 
the defendant has not pleaded nor made this an issue in 
the case. It was an afterthought. (See objection to 
testimony, Tr., p. 71.) 


THE OPINION OF THE LOWER COURT. 


The distiguished trial Judge dismissed the suit upon 
three grounds only, to-wit: 1. That the plaintiff was at 
fault himself in the initiation of the controversy, 2. that 
he was again at fault in retaliation, and 3. that he 
does not find the language libelous or malicious. The 
judgment must stand or fall here upon one or all of 
these propositions. 


I. 

We respectfully submit, 1. That the facts stated in 
the opinion do not support a charge of moral or legal fault 
in either proposition. 2. That the facts recited in the 
opinion and constituting the basis of finding decisive 
substantial legal fault in the plaintiff, in either event- 
do not measure up to that high degree of fault, contribu¬ 
tory or retaliative, which in law relieves the plaintiff of 
his otherwise confessed case. It should have been such 
fault as would be actionable independently of the fault 
originally complained of. And furthermore it should 
have been specially pleaded and an issue in the case. It 
was never pleaded. 


II. 


On the proposition that the plaintiff was in fatal fault 
at the inception of this controversy, the learned trial 
Judge culled from the entire record, as it was proper for 


8 


him to do, the greatest alleged fault made by the plaintiff 
in this: 

“Mr. Bayliss (D. 2, p. 19) says: ‘During our 
interview the Grand Master asked us if we had 
organized. We answered that we had not/ This 
is the only question he asked relative to our Rite, 
and we replied without the least equivocation or 
mental reservation. We took it for granted that 
he knew degrees had been given, and that he de¬ 
sired to know whether or not bodies had been or¬ 
ganized. If he desired to learn whether or not de¬ 
grees had been given he should have asked the 
question. We would have furnished any informa¬ 
tion he wished /’ 


It is submitted in frankness and confidence that, noth¬ 
ing found in the matter above quoted from the opinion 
can be construed as evasive or showing purpose to conceal 
any important information. The answer to the question as 
to “whether we had organized V 9 was direct, its own self 
explanation and full exculpation from such fault 
as to deny relief to the plaintiff. The plaintiff 
answered truthfully the question propounded to him, 
and gave a reason sustained by the record for not making 
the further answer now complained of. He is sustained 
for a belief that the Grand Master knew then of initia¬ 
tions. It will not be forgotten that this conference 
between these high brother masons was upon the sub¬ 
ject of organizing a consistory, (Pamphlet D. 1., Tr. p. 
160) and the Grand Master knew it, (Pamphlet D 3, p. 


9 


22); and for an opportunity to plaintiff to show the ma¬ 
sonic merits of his Rite. (Tr., pp. 114,125.) We further 
submit that the transcript not only upholds the state^ 
ment of the plaintiff that he supposed that the Grand 
Master knew of the initiations, that in truth and in fact 
he did know it, but also, that the plaintiff left that con¬ 
ference believing he had the right not only of initiation 
but of organization, and was not otherwise apprised until 
the publication of the libels complained of came to his 
hands in Washington shortly after their appearance 
through the mails. 


III. 


It cannot escape the attention of this Court that the 
opinion of the learned trial Judge leading down to his 
finding of defensive initiative fault on the part of the 
plaintiff, confesses, ex necessitate finding first, actionable 
fault of the Grand Master in such manner as to bind the 
Grand Lodge, or the body corporate, also leads down to 
the second proposition of retaliative fault on plaintiff's 
part by a like confession of first finding legally actionable 
fault in the publications of the slanderous edicts. We 
submit that it does not answer the demand of the law 
which “obliges him by whose fault it happened to re¬ 
pair it,” to say “these edicts were evidently intended to 
be confidential to the Masonic Order, but evidently be¬ 
came public, and are the basis of this suit.” The in¬ 
tention is shown by the results and effects. 


10 


Now, then, we submit that, after traveling through the 
record to follow the trend of the conclusions reached by 
the trial Judge who found original and continuing action¬ 
able fault excused by lack of an answer “not entirely 
frank and complete,’’ although not deceptive or mislead¬ 
ing and in a natural complaint of a malicious publication 
spread abroad whether so intended to be or not, “that 
the Grand Master violated a promise to allow a hearing 
regarding the merits of the Scottish Rite represented by 
him.” Plaintiff went to the Grand Master for a con¬ 
ference, got the promise of a hearing on the merits of his 
Rite, left believing that he would get it, but instead was 
personally branded in most burning and scandalous lan¬ 
guage. Yet, because a gentleman complains under such 
galling wounds of a broken promise, has he lost his case? 

We respectfully challenge a comparison of the facts 
in this case with those cited in the opinion, or that may 
be in the brief of opposing counsel, to show the utter want 
of fatal initiative or retaliative fault of the plaintiff. The 
proposition that the defendant has justified its calumnies 
on these grounds fails. And. losing this defense, the 
case is closed against it. We again claim that the de¬ 
fense should have been specially pleaded. (See authori¬ 
ties quoted hereafter.) 


IV. 

Finally on these propositions. We have above contend¬ 
ed that the conclusion reached by the learned trial Judge 
as to conditions created by the plaintiff is not supported 


11 


by the record. We submit that in further leading to his 
judgment of the case he was in greater error in conclud¬ 
ing that 44 these edicts of the Grand Master were in¬ 
vited by this surreptitious invasion of the jurisdiction 
of the Grand Lodge of Louisiana over the partially suc¬ 
cessful attempt to swerve their allegiance to it, members 
of recognized masonic bodies in this State.’’ This 
sentence doubtless forced from the bench by the na¬ 
ture of the case as he saw it, from the great array of 
Grand Lodge reports admitted only to prove that the 
words used were common expressions, manifests the wis¬ 
dom of that law which holds that the failed pleadings in 
a case like this, is a continuing aggravation of the libel 
and consequent damages. 

We will be excused for expressing the apprehension 
that the enthusiasm of the eminent counsel for defend¬ 
ant of which he was once the head and one of its honored 
members led off the trial Judge from the threshold of the 
opinion to its conclusions, into strange fields of learn¬ 
ing. 


V. 

The good faith and proof of no initiative fault on the 
part of plaintiff is borne out by the record. (See Tr., 
pp. 49, 50, 67, 114, 124, 125, 127, and defendant’s own 
witness, Tr., pp. 213, 215.) 

The trial Judge says in his decison: 

“Mr. Bayliss in his pamphlet ‘D 2’ complains 
that the Grand Master violated a promise to allow 


12 


a hearing regarding the merits of the Scottish Rite 
represented by him. Admitting this, Mr. Bay- 
liss concedes that he knew there was objection to 
the admission of his Rite, which he was endeavor¬ 
ing to overcome, and in the meantime was either 
himself or by deputy initiating regular Masons into 
his unrecognized and hence masonically illegal 
body.” 


We respectfully submit that neither by the record nor 
by any process of deduction does Mr. Bayliss make such 
concession. He heard no objection, knew of no masonic 
law in this jurisdiction prohibiting the conferring of his 
degrees and believed there was none, which belief is cor¬ 
roborated by defendant’s own witness F. W. Heroy (Tr. 
pp. 213, 215), and neither were degrees conferred in the 
meantime. (Tr., p. 127.) Knowing what had been done 
in Arkansas, and rescinded upon proper explanation he 
sought an interview with the Grand Master, believing 
that a due regard to his masonic obligations irrespective 
of his sense of justice, would insure him a hearing and 
prevent possible adverse action. This is plainly set forth 
in the following quotation from near the bottom of page 
18 of pamphlet “D-2.” 

4 ‘While in Little Rock we learned that the 
Grand Master of La., might be induced by our op¬ 
ponents to interfere with our work in that State. 
Upon completion of our business in Arkansas, we 
went to New Orleans for the purpose of interview¬ 
ing the Grand Master, if possible, and ascertaining 
whether or not we would be heard before being 
condemned. ’ 7 


13 


VI. 

“I do not find the language libelous or malicious.” 

With these words the Judge a quo dismisses the ques¬ 
tion of libel vel non. 

We respectfully submit that his opinion is not in har¬ 
mony with the settled jurisprudence and findings of 
the Courts of this State and country. 

It is not what the Grand Master had in mind or what 
the well posted Mason may understand by the words 
“‘clandestine pretender” and “interloper” or a peddler 
of masonic degrees, but what the ordinary mind, or any 
one reading those words will understand. 

Taking the specific words complained of in their com¬ 
mon acceptation and meaning ,as plain people and the 
plain law does, rather than in their lodge room parlance, 
the standard dictionary gives the following definitions: 
“Clandestine,” kept secret for a purpose; concealed; sur¬ 
reptitious; underhand. “Pretender,” one who makes 
false or exaggerated profession or display; hypocrite; 
dissembler. “Interloper,” one who intrudes into a pro¬ 
fession, office, etc., belonging to another; one who thrusts 
Himself into a place without right. “Peddler,” one who 
sells in small quantities out of a stock carried from house 
to house; to hawk; to dispense little by little. “Spuri¬ 
ous,” not from the proper sources or from a pretended 
source; not genuine; false; forged; conterfeit; illegiti¬ 
mate. These are samples of the epithets contained in the 
publications, and “sharper than a serpent’s tooth” they 
sting the personal character and reputation of the plain¬ 
tiff, and they are filled with venom. 


14 


What better proof of what the ordinary mind, even that 
of a mason, will understand by these words, than the tes¬ 
timony of defendant’s own witness. 

Mr. Josiah Gross, witness for defendant in his testi¬ 
mony on page 171 of the transcript, says: 

Q. Can you tell what the Masonic understand¬ 
ing is of one who is a peddler by (sic) being a clan¬ 
destine pretender? 

A. He is a FRAUD. 


In the digest of American cases cited in Newell on Slan¬ 
der and Libel, (2nd. Ed.), p. 50, par. 34, it has been held 
libelous to publish of a man in writing or print “he is a 
hog,” to call an attorney “a shyster,” to call a man a 
44 skunk . 9 9 To charge a person with being 4 4 a drunkard , 9 9 
“a cuckold” a 44 tory.” To designate an editor of a 
neighboring newspaper 44 an ill-natured manikin 4 a’ 
mouse most magnanimous,” 44 a vermin small.” 

And on page 58, digest of English cases, par. 1, it is 
libelous to write and publish of a man that he is 4 4 an in¬ 
fernal villain” an 44 impostor” hypocrite,” a 44 frozen 

snake.” 

In paragraph 3, ironical praise may be a libel, calling 
an attorney 4 4 an honest lawyer . 9 9 To impute to a Presby¬ 
terian 44 gross intolerance” in not allowing his hearse 
to be used at the funeral of his Roman Catholic servant. 
Page 60, paragraph 10, it is libelous to call a man a 
“black-leg” or a 44 black-sheep.” 


15 


Illustrations (page 78). To state in writing that a man 
has turned into an enormous swine and lives on lame 
horses” and ‘ 4 will remain a swine the rest of his days” 
is libelous. 

“Scandalous matter is not necessary to make a 
libel. It is enough if the defendant induce an ill 
opinion to be had of the plaintiff or make him ridi¬ 
culous or comptemptible. 

“To say of a man he is a dishonest man is not 
actionable, but to publish so or to put it upon posts 
is actionable. Skinner 124.” 


We believe that the trial Judged third and last reason 
for dismissing plaintiff’s suit is not well founded and not 
borne out by the evidence nor in harmony with the juris¬ 
prudence of the land. 


ARGUMENT. 

I. 

This is a libel suit and not a suit to determine the re¬ 
lative merits of the two rival Rites advocated by the par¬ 
ties to this suit. And under the ruling of the trial Judge, 
sustaining plaintiff’s objection, all evidence which may 
tend to prove the relative merits of the two Rites is to be 
disregarded. And whether the Rite of which Mr. Bayliss 


16 


is the head be recognized or not by the defendant, cannot 
be considered by yonr Honors, in determining whether 
Mr. Bayliss has made out a case of libel against the Grand 
Lodge of Louisiana, for calling him by name an interlo¬ 
per, a clandestine pretender and a peddler of bogus, 
spurious and clandestine Masonic degrees. 

Letter of Secretary Josiah Gross, February, 1908. 

In the letter of the secretary of Germania Lodge No. 
46, in the City of New Orleans, addressed to Grand Master 
J. C. Drew on the 27th day of February, 1908, the secre¬ 
tary, Mr. Josiah Gross, stated that he had been invited 
to join in the formation of a consistory of plaintiffs 
Scottish Rite. 

This letter anticipated both the lack of information 
on the part of the Grand Master, and respectfully sug¬ 
gested to him a means of being fully informed by a com* 
ference with plaintiff. It reads as follows: 

“If as may be probable, you are not yet fully 
informed as to the claims of the jurisdiction of the 
United States, would you have any objection to a 
conference with the brethren now engaged in estab¬ 
lishing this consistory, for the benefit of all con¬ 
cerned.’’ 


The silence is ominous on this point in the Grand Mas¬ 
ter’s answer to this letter, as it is upon the information 



17 


by telegram that the ‘ 4 Grand Lodge of Arkansas had de¬ 
cided favorably to the Bayliss committee.” 

And, another significant fact in this letter is the neces¬ 
sity for immediate action to save jeopardizing “the stand¬ 
ing of many well-meaning brethren, who now believe that 
they are within their rights in assisting the new organiza¬ 
tion.” 

So it is, it is respectfully insisted, that this initial step 
begins the disclosure of a reckless and depraved disre¬ 
gard for the rights of the plaintiff, because the Grand 
Master had full information that should have led him to 
an amicable adjustment of the annoyance and saved the 
humiliation that must follow alike to the plaintiff and 
the Grand Lodge of Louisiana. The record of the testi¬ 
mony shows a conference which plaintiff left, believing 
he would meet no opposition. In view, of the expressed 
belief of Mr. Gross and the other well-meaning Master 
Masons, in their right to join plaintiff’s consistory, it was 
gross carelessness and inexcusable negligence, if not posi¬ 
tive design to harm the plaintiff, in not making a reason¬ 
able investigation and granting Bayliss a hearing as 
promised in the interview. 

The testimony teems with instances to show that Mr. 
Bayliss acted in good faith throughout. For instance at 
page 49 of the transcript, in cross-examination by Mr. 
Buck: 

Q. Did you not know before you came here that 
the Grand Lodge of Louisiana had acted upon this 
question as to what Scottish Rite bodies it would 
recognize in this State? 


18 


A. No, sir; I did not know it, and I made efforts 
to find out from one who, I was told, was District 
Deputy Grand Master of your Lodge, and I was 
told by him that there was no law on your record 
which prevented members from joining if they saw 
fit. • • • 

Q. You knew if you got into a jurisdiction hold¬ 
ing the view that the Grand Lodge of Louisiana 
was holding, that you would cause trouble? You 
know that? 

A. No, sir; I do not. 

Q. You certainly ought to have known it as a 
Mason. 

A. Brother Buck, how could you expect me to 
know when the members of your own Grand Lodge 
didn’t know, a gentleman took the Code down and 
examined it to answer my question. 

And see, Tr., p. 67. 


And again at page 114: 

By Mr. McClurg: 

“You have stated that you came here by invi¬ 
tation from Master Masons of Louisiana? 

A. A letter written to me, individually, by Ma¬ 
sons, owing allegiance to the Grand Lodge of 
Louisiana, relative to the organization of Scottish 
Rite Bodies in the State of Louisiana. 

And see, Tr., p. 124. 

At transcript page 125, we find the following: 

Q. What was his name? 

A. Mr. Drew, I am not sure about the initials; 
I showed him my certificate as a Mason, my pat- 


19 


ents, my receipts and convinced him that I was al¬ 
right, and I told him what had been done in Arkan¬ 
sas, and showed him a copy of the report of the 
committee, as unanimously adopted there and 
asked him if he would give us a hearing before he 
took any action. He promised me he would—that 
was my understanding and I left him, believing 
that before anything was done here I would be 
called upon to appear before a committee or before 
the Grand Lodge, or in some way to explain this 
matter; and shortly after I got home the edicts 
were issued. 

And again at page 127 of the transcript: 

By Mr. Bayliss: 

A. So far as my knowledge goes, I never did a 
thing to offend the Grand Lodge of Louisiana, or 
any member, my aim was to do what was right, 
and every move I have made was to gain honest 
information so as to avoid over-stepping any law 
and just as soon as the Grand Master issued his 
edicts all work was stopped here, and I inquired 
where he got his authority, whether there was any 
such law here. I have a copy of the Constitution, 
and I can find no such law in it and I know of no 
law to-day, only by hearsay, that there is anything 
against it. I know of nothing by official printed 
information that the Grand Lodge has passed any 
law or amended its Constitution in any way to af¬ 
fect the Scottish Rite Masonry. 

And defendant’s own witness, Fred W. Heroy, in his 
examination by Mr. Buck, testifies: 

Q. Did you and he discuss the matter of the law 
of the Grand Lodge of Louisiana on the subject of 
Scottish Rite Masonry.? 


20 


A. Who do you mean by 4 ‘her’ 

Q. Mr. Henderson and you ? 

A. Yes, Mr. Henderson. 

Q. What action did you reach ? 

A. I reached the conclusion that there was no 
law that would interfere in my receiving the Scot¬ 
tish Rite degrees. 

Q. How did you reach that conclusion? 

A. After asking question of those I thought 
ought to know. 

Q. Whom did you ask? 

A. I asked a large number of people in this city 
here. 

Q. Name some of them, please? 

A. To come right down to it specifically and 
finally, among others, one day I came into the Fire 
Prevention Bureau building and was talking to a 
Mr. Rickey, there were others there also, but I 
talked to him. 


And on page 215, of the transcript, same witness: 

A. Mr. Rickey told me he was going to refer the 
matter to you (meaning Mr. Buck), and I said: 
“ Please let me know what Brother Buck thinks 
about it.” He said: “I think he will say that it is 
clandestine.” I said: “Let me know. The next 
day I saw him and he told me that you (Mr. Buck) 
knew of nothing that would prevent him from join¬ 
ing the aforesaid Scottish Rite (Bayliss’) but you 
(Mr. Buck), advised him, Brother Rickey, to join 
the Scottish Rite that was down here in the city} 


It is both significant and amusing to notice how the 
name of “Bayliss” was bandied in the letters and edicts 


21 


and how it was avoided to be written at all in the report 
to the Grand Lodge. Like the chiseling a name off the 
arch of Cabin John’s bridge; made it more prominent. 


II. 


GRAND MASTER DREW’S EDICT. MARCH 14TH, 
1908. 


It begins: 44 A communication has been addressed to me, 
in my official capacity as Grand Master,” and ends, “J. 
C. Drew, Grand Master.” Ridicule and contempt is 
evidenced in its first lines: 44 by one M. W. Bayliss, hailing 
from Washington, D. C. ” Then follows the false and ter¬ 
ribly reacting declaration that, 4 4 after very careful con¬ 
sideration and the most exhaustive research into this mat¬ 
ter. ’ ’ And the next part of the sentence: 4 4 1 have arrived 
at a positive and definite conclusion,” carries in it one of 
the most significant elements of legal malicious purpose 
in the whole case; in that, he expresses a positive convic¬ 
tion of an erroneous and to the defendant, a most unfor¬ 
tunate conclusion; thereby, as it will be pointed out later 
on, eliminating consideration by the Court of citations to 
information and forcing his official deductions to stand 
along in justification of what he writes and publishes. 

It is respectfully submitted, that a false statement here¬ 
tofore pointed out, in skilfully and for a deliberately de- 


22 


ceptive purpose added, when the Grand Master, under¬ 
taking to elude and “brace up,” writes his brethren, “I 
find, after the most careful examination and probing this 
matter to the bottom, that the said Mr. Major W. Bayliss 
is the presiding officer of the Supreme Council of Sover¬ 
eign Grand Inspectors General, etc, A. & A. S. R., and that 
said Body is designated by some as the Bayliss-Gibson 
Body, (specifically denied in the proof) which is known 
to be a branch of the “Cerneau” Body of Masonry which 
has been declared clandestine by the Grand Lodges of 
Ohio, Iowa, Massachusetts, Pennsylvania and many 
others.” Strangely enough, he failed to state his infor¬ 
mation of the action of the Grand Lodge of Arkansas. 
(See letter of Gross, D. 1.) 

Such conduct, we submit, in connection with the 
purpose to protect the membership and source of revenue 
of the Southern Scottish Rite Masonry, distinctly shows 
the envious malice of the Grand Master—the vicious in¬ 
tention to drive out the Supreme Council of the plaintiff 
even though the destruction of the plaintiff himself be¬ 
came, as he in fact deemed it, a necessity to that end, 
and “crush this interloper in his incipiency.” 

Jurisdictional Power, Authority, Agency, “Now 
therefore, brethren, upon me, as your chosen Grand 
Master, is imposed the duty of seeing the laws and regu¬ 
lations of this Grand Lodge are duly and strictly en¬ 
forced, and from this sworn duty I shall not swerve or 
turn aside.” And then what? “The fact having been clear¬ 
ly established to my mind beyond any reasonable doubt 
whatever, that the Cerneau Bodies are clandestine, I 
therefore, by virtue of authority vested in me as Grand 


23 


Master of the most worshipful Grand Lodge of the State 
of Louisiana F. and A. M. do hereby declare the Bodies 
calling themselves the Supreme Council of the Sovereign 
Inspectors General of the Thirtythird and last degree, An¬ 
cient and Accepted Scottish Rite for the United States of 
America, their Territorities and Dependences, and com¬ 
monly knov/n as the Cemean Rite, to be bogus, spurious, 
and clandestine, and that they ought not to be counten¬ 
anced or recognized in any manner by brethren under 
obedience to this Grand Lodge.” He proceeds then to 
warn the membership under penalty of expulsion, not to 
join it, and to command, “the Grand Secretary shall fur¬ 
nish every lodge in his Grand Jurisdiction with a copy of 
this communication, and the same be read in open lodge, 
so all the Brethren be informed.'’ (Black-letters ours.) 


III. 

GRAND MASTER DREW’S EDICT OF MARCH 24TH, 
1908. 


Recalling with approval his previous edict, more direct¬ 
ly aimed at the Rite, his first paragraph in his edict of 
March 24th, begins also in ridicule and contempt, plainly 
manifest, for “one M. W. Bayliss, claiming to be the 
head” etc., “who had communicated or conferred upon 
them the degrees ‘peddled’ by this clandestine preten¬ 
der.” Your Honors have said, as we will point out, that 


24 


this “ thrust was not only gratuitous hut libelous.’’ Under¬ 
standing the task he was to perform in the work of rivalry 
among honorable free Masons he paved the way to his 
point by excusing the ignorance of those who believed, 
(and we are informed by the letter of Mr. Josiah Gross, 
that there were “many well-meaning men” who enter¬ 
tained the belief), “that the Grand Lodge has control only 
of the Three Symbolic Degrees; that it takes no cogniz¬ 
ance of the other degrees or branches of Masonry.” He 
then plans a way by which these Master Masons may es¬ 
cape masonic death by confession and recantation which 
he required the Masters of the Lodges to exact and to 
“heal” the offending members in the manner and upon 
the conditions named by him. Here the shaft is driven 
its full length into the plaintiff. No necessity of “fur¬ 
ther argument or proof as to the spurious and clandestine 
character of ‘Bayliss’ masonry, nor of my duty and au¬ 
thority to interfere in the premises. Louisiana masonry 
has fought this battle many years ago, as other States 
have done, where the clandestines, encouraged by tempo¬ 
rary success, crowned their unlawful encroachments by 
selling even the three fundamental degrees. I appeal to 
all faithful brethren to crush this interloper in his incip- 
iency and keep the fire-brands of discord and confusion 
out of our Temple.” Signed J. C. Drew, Grand Master, 
and attested under seal of the Grand Lodge by Richard 
Lambert, Grand Secretary. (Our black-letters.) This 
edict is dismissed for the present with the utmost confi 
dence that the Court appreciates its animus toward plain¬ 
tiff and will give it due consideration in adjudging the 
justice and legality of the plaintiff’s claim. 


25 


IV. 

GRAND MASTER DREW’S THIRD LETTER, APRIL 
23RD, 1908. 

(Pamphlet D-3, page 25.) 

“As the attitude of the Grand Lodge towards the so- 
called Cerneau Rite does not seem to be generally known 
to the Craft” etc. “The different circulars (the edicts) 
have been adversely criticised and doubt as to the correct¬ 
ness as to the Grand Master’s position publicly express 7 
ed, ’’ is the language used in the opening of this communi¬ 
cation. Then follows the beginning of the shameless 
dodge followed up to the moment. “Many probably ac¬ 
cepting that publication (‘Square and Compass’) as quasi 
official, while it utterances must be accepted as wholly 
unofficial and personal.” The Court will readily under¬ 
stand the change that came over the spirit, of his dreams. 

* 1 1 submit further proof that it is not only my right, but 
my bounden duty to take drastic measures, if necessary, 
to crush this interloper in his incipiency.” It seems, ver¬ 
ily, that his own craft evinced a spirit of rebellion against 
his high-handed purpose to use their lodges to crush this 
interloper, or to meddle with Scottish Rites. 

The effort to take shelter behind Mr. Buck serves him 
no good purpose. It is but the agonizing shriek of a 
guilty conscience. The report, in the legal and logical 
view of the instant case, has not been, nor can it be justi- 


26 


fied in law; its republication here for an express purpose 
fails. The comparison is deadening. The sensible tem¬ 
per of that report condemns the ill-temper here. 

The post-script paragraph intentionally, it is believed, 
omitted to cite any reference to plaintiff’s Lodge and 
Grand Lodge in which he was in good standing, and with 
which the Grand Lodge of Louisiana was in fraternal 
communication as it did to the action taken by the Arkan¬ 
sas Masons. He did not know, as he might have known, 
and should have known, as it was his duty to know, that 
plaintiff’s Bite was endorsed by a public, recorded act 
of incorporation under the laws of the United States in 
force in the District of Columbia. The Grand Master was 
so strenuously taken to task by Louisiana Masons that he 
was compelled to initiate his defense against his own 
Kith and Kin. 


V. 

REPORT TO GRAND LODGE, FEBRUARY, 1909. 


In the opening breath of acting Grand Master Null’s 
report of the matter here under investigation to his Grand 
Lodge, he expresses satisfaction in suppressing “the at¬ 
tempted introduction of Cernauism into this State.” So 
completely had Grand Master Drew dealt the blow and 
with such “little difficulty or friction,” he proceeded to 


27 


declare, ‘ 4 it is safe to say that the peace and harmony of 
our different subordinate bodies will never again be 
threatened by its re-appearance.’ ’ Then he boasts of the 
pleasure it gave him in “making a part of this report as 
an appendix, the circular letters and papers in connec¬ 
tion,’’ and to express the “hope that you will give them 
due consideration and weight and approve the acts of 
your official head. ’ ’ Hence, it is, by the first official men¬ 
tion by the “official head,” to the Grand Lodge, the libel 
of nearly a year’s standing was approved, reiterated, re¬ 
published and intensely aggravated. 

The reassertion and the republication given in the first 
paragraph of the report is made all the more personally 
offensive and publicly harmful to the plaintiff, because 
acting Grand Master Null made them after knowledge of 
the fact, “that the person—a Master Mason—I am in¬ 
formed, in good standing in a lodge under the jurisdiction 
of a Grand Lodge with which this Grand Lodge is in 
fraternal communication, whose name appears in these 
circulars, has taken personal exception to them on the 
ground that they contain references to him as a man 
which he considered libelous and defamatory.” Plaintiff 
had complained to the Court to redress the wrong per¬ 
petrated against him by the “fault” of the Grand Master; 
who with the knowledge of plaintiff’s masonic good stand¬ 
ing, not only refused to make an effort to “repair it,” 
but proceeds to ridicule the effort of plaintiff 
to seek compensation, in a measure, for the injury, in the 
Courts of this State, “in the modest sum of fifty thousand 
dollars,” and he endorses the advice that the suit “need 
not be taken seriously.” 


28 


However, his evident guilty conscience forced liis pen 
at once into a further defensive line, and into wholly er~. 
roneous statements wherein he advises the Grand Lodge 
that ‘ i the acts of the Grand Master are not the acts of the 
Grand Lodge until in terms approved by it;” and in that, 
“the Grand Lodge is not concerned with the particular 
verbiage or expression which the Grand Master em¬ 
ployed in his communication to the Masons of this juris¬ 
diction. ’ ’ The law, we submit, is exactly the reverse. 
The unquestioned proof made by defendant’s own wit¬ 
nesses is that in vacation the Grand Master is the Grand 
Lodge and, right or wrong, must be, and in fact was 
literally obeyed. (Trans., p. 198.) The apologetic ex¬ 
planations in the next paragraphs not only show an effort 
to induce a false construction of his “particular verbi¬ 
age” by the Craft, but it is equivalent to a confession of 
his wrong, and is in fact a further publication thereof. 

Nothing can be more convincingly apparent, it is res¬ 
pectfully submitted, than the false and deceptive appeals 
of the Grand Master for a different construction by the 
Grand Lodge of his “particular verbiage” than that the 
spirit in which it was written or that which, in common 
interpretation, it imparts and means. What “mailed 
hand” wrote this? The “conclusion” of the “official 
head” that the “Grand Lodge should limit itself” in con¬ 
sidering the action of the Grand Master, “to the expres¬ 
sion of approval or disapproval to this scope and intent, 
without reference to any foreign or personal comment not 
a part of the law of this grand jurisdiction on the sub¬ 
ject,” is not well taken, it is not sound. 



29 


One truth is found in the report: “Obviously, it was 
therefore, not only the Grand Master’s right, but his duty, 
to warn the Craft under his jurisdiction.’’ But the corre¬ 
lative truth, that it was his duty to warn within reason¬ 
able bounds and in language free from malicious libei, 
especially personal defamation to that “person, a Master 
Mason, whose name appears in these circulars—actual¬ 
ly ashamed or afraid to write it, hence that name does not 
appear in the report—eo nomine, but it is read between 
the lines. 

Finally: the report affirms the despotic power of the 
Grand Master, ad interim, in that it points out that 
“after the publication of the circulars” twelve Master 
Masons in the City of New Orleans, did what? “Admitted, 
in response to the edict, in that regard, that they had had 
masonic communication with the party. The extent of 
it was not ascertained; but, in open lodge, the brethren 
declared their withdrawal and recantation.” 

“The party?” Pen paralysis prevented his writing 
“M. W. Bayliss.” 

A smitten conscience and the fear of the law forbade 
him to name the plaintiff in his report to the Grand Lodge. 
In fear, ridicule and contempt, he refers to plaintiff as 
4 ‘ the person, ” “ the party, ’ ’ etc. Surely a legal truth had 
been whispered into his ear. He undertook in that report 
to cajole the Grand Lodge to adopt a false construction 
and meaning of what he had published. The report is 
false; so palpably false in fact and in law, that it reads 
itself beyond the reach of privilege, mitigation or justi¬ 
fication. 


30 


The studied deliberation with which the defamatory 
language of the official edicts were thought out, written 
out, printed, mailed and published to the hundreds of sub¬ 
ordinate lodges to be read to and by the thirteen thousand 
Masons in Louisiana, the hundreds of thousand of Masons 
in the United States and throughout the masonic world, 
and by others in whose hands these edicts fell; is so posi¬ 
tively and unequivocally expressive of ill-will toward 
the plaintiff personally and of purpose direct to bring 
him into contempt, ridicule and hatred and to injure him, 
that it is absolutely indefensible by justification or by any 
other means known to the law. 

Indeed, to the plaintiff, or to any decent man, with 
wife, and his children to follow him, with friends and as¬ 
sociates to remember him, with a character and reputa¬ 
tion of half a century’s making, and, of which he may well 
be proud, these edicts appear as 4 ‘cruel as death, as 
hungry as the grave.” 

It should have been enough, entirely enough, for this 
assault to have stopped with an exposure of the masonic 
unsoundness of the Scottish Rite which the plaintiff 
sought to plant here in masonic method and without vio¬ 
lation of law. It is respectfully submitted, it is impossi¬ 
ble to follow the assault in its ill temper beyond the con¬ 
demnation of the Rite itself into a mercilessly savage at¬ 
tack upon the personal character and reputation of the 
man, without discovering moral, legal vemon, malice in 
law and malice in fact. As was said by the Louisiana 
Supreme Court in the Lescale vs. Schwartz case: “There 
was no necessity for the defendants to refer to the plain¬ 
tiff. It was wholly gratuitous. They went out of their 


31 


way to assail him in the manner complained of ” “a mere 
cover from under which to perpetrate an unwarrantable 
and uncalled for assault.’ ’ 


VI. 


So then, we have a case where the Grand Lodge put 
one at its head and clothed him with every power it pos¬ 
sessed, to be exercised at his discretion in vacation for 
and on its behalf. That by and through this authorized 
agent, acting within the scope of his duties and authority, 
we find that Grand Lodge itself bursting forth in two dis¬ 
tinct scurrilously defamatory edicts ten days apart, in 
most premediated deliberation, against the Scottish Rite 
under the Supreme Council of the United States, etc., and 
also against the plaintiff, a Master Mason in good stand¬ 
ing in a Lodge of good standing, and in masonic corres¬ 
pondence and fraternity with itself. Admitting, for the 
sake of argument, the right to supervise such branches, 
be granted, there could be no license to slander either the 
Rite itself or any of its officers. In vacation the Grand 
Master was the Grand Lodge, and as held by the lower 
Court in passing upon the exceptions to the petition, the 
Grand Lodge was and is responsible for his official acts. 

In the present light of this developed case, it seems to 
be beyond doubt that the controlling motive for the pub¬ 
lication complained of rested in the rivalry which the Su¬ 
preme Council Scottish Rite proposed to institute in the 


90 

in¬ 


state of Louisiana with the Southern Jurisdiction Scot¬ 
tish Rite already firmly established here, and that the 
Grand Lodge espoused the cause of the Southern Juris¬ 
diction and, deliberately, with malice in law, undertook 
to strike the Rite represented by Mr. Bayliss and its chief 
officer personally a crushing blow. 


VII. 


PRIOR PUBLICATIONS—GRAND LODGE REPORTS. 


Action by other masonic bodies adverse to the one re¬ 
presented by the plaintiff here has been read into the 
record at great length in support of its plea of justifica¬ 
tion or rather explanation of the words used. The 
proposition to support the defense on this ground 
must fail. The ex parte finding of other bodies is 
in law no justification or other defense. Not even from 
so reliable a source as the associated press may libelous 
matter be republished with impunity. It has been so held 
in Florida, Kentucky, Massachusetts, Missouri, New Jer¬ 
sey, New York, Oregon, Pennsylvania, and in the U. S. 
Courts. 25 Cyc. L. & Pra., p. 415, and notes 33. 

The same authority cites the Courts of Connecticut, 
Georgia, Kentucky, Louisiana, Cade vs. Redditt, 15 La. 
An. 492, Michigan, New Jersey, Missouri, New York, 
North Carolina, U. S. 94 Fed. 762, and English authorities, 



33 


to tlie effect that “reports and rumors previously exist¬ 
ing’’ is no justification for publishing defamatory mat¬ 
ter. 

In Billet vs. Times-Democrat Pub. Co., 107 La. 759, 

Judge Monroe quoted in the opinion: 

4 4 In giving currency to libelous and slanderous 
reports and publications, a party is as much respon¬ 
sible, civilly and criminally, as if he had originated 
the defamation. Tale bearers are as bad as tale 
makers. To justify by proving the truth of the 
facts stated, the defendant not only assumed the 
burden of proving the statements, but of proving 
that those statements were true.” 


This, we submit, disposes of the adverse action by other 
Lodges and the plea and the proof fall: 

It will certainly not be claimed by defendant’s counsel 
that a single slanderous word, sentence or line in either 
edict was proven to be true. Then the plea of justifi¬ 
cation having failed in the proof, the plea itself serves, 
says the law, “as an aggravating circumstance” to be 
taken into consideration in estimating the damages. The 
motive with which the plea was made necessarily fol¬ 
lows the motive that prompted the publications. 

“Neither reasonable cause to believe a libelous 
charge is a defense for its publication. (Burt’s 
case, Mass. 13 L. R. A. 97) nor the mere belief in 
the truth of the publication is necessarily enough 


34 


to constitute ‘good faith ’ on the part of 
the publisher; there must have been an absence of 
negligence as well as improper motives in mak¬ 
ing the publication. It must have been honestly 
made in the belief of its truth and upon reason¬ 
able grounds for its belief, after the exercise of 
such means to verify its truth as would be taken 
by a man of ordinary prudence.” 


VIII. 


THE PLEAS, OR ANSWERS. “EXHIBITS ‘A* 
AND ‘B.’ ” 


No retraction or disavowal is shown. At the utmost 
an explanation, or excuse, after suit brought is reported 
to the Grand Lodge about ten months later and its ac¬ 
tion is equivalent to a direct approval of what had been 
done by the Grand Master. The report in itself an in¬ 
sulting aggravation of long standing wrong, was adopted 
even though done in a shielding and apologetic way. To 
turn back now and recall all of the official masonic and 
Court documents in their chronological order and give 
all the usual interpretation, we submit that each of them 
but intensify the original injury. 

“A subsequent article not containing a disa¬ 
vowal or retraction but attempting to put a new 



35 


construction upon the libel is not admissible as a 
mitigating circumstance. ’ * 25 Cyc. L. &. Pra. 424. 


Of course the Court will remember that no effort was 
made, as it could not be, to show that either the Grand 
Master or the Grand Lodge undertook to correct the 
wrong by sending out a letter or edict to the Lodges ex¬ 
plaining, retracting or disavowing a purpose to wrong. 
In short, the original libel was not only permitted to 
stand for all the injury it was worth, but has been exag¬ 
gerated in every kind of publication thereof since, and 
will be until the case is finally closed. 

4 4 The Court found that the publication of the 
libel was followed, upon the next day, by a recan¬ 
tation, and that the reputation of the plaintiff was 
vindicated by an article written by the employee 
by whom the libel had been penned and subsequent¬ 
ly published in the same paper. Nevertheless, it was 
said, ‘ The injury has been done— vox semel missa 
non revertit. The slander circulated by one issue 
of the paper could not be wholly obliterated by re¬ 
cantation in another/ As if quoting from the in¬ 
stant case, Judge Monroe, in Billet's case, proceed¬ 
ed to note, ‘In the case at bar there has been no 
recantation, nor reparation of any kind. On the 
contrary, the defendant has affirmed the truth of 
the libel complained of by averments in its plead¬ 
ings which it has failed to sustain by proof.' The 
judgment appealed from was annulled and judg¬ 
ment entered for plaintiff." (See also New Or¬ 
leans Times case, 25 La. Ann. 170.) 


36 


In Covington vs. Robertson, 111 La. 342, this Court ap¬ 
proves the rules laid down in Am. & Eng. Encyc. of Law, 
pp. 998 and 1029, that: 

‘ 4 When the publications of libelous or slanderous 
matter is shielded by no privilege, it will be no de¬ 
fense, either in a civil or criminal proceeding, that 
the defendant in good faith believed the charge to 
be true, and otherwise acted without malice, and 
that the fact that the defendant had probable 
cause for such belief does not alter the rule.” 


It will be noted by the Court that the edicts do not dis- 
disclose upon what information or authority they were 
published. We are left to infer from the course of the de¬ 
fendant’s counsel on the trial that the basis for the pub¬ 
lications rested upon the ex parte declarations of other 
lodges. 

And, further, in the Covington case: 

“ Assuming that defendant was honestly con¬ 
vinced that plaintiff was guilty of the crime with 
which he charged him, he reached his conclusions 
upon statements made to him by Zachary, which 
carried no probative force to any reasonably pru¬ 
dent man and the circumstances of which he him¬ 
self had personal knowledge, were totally insuffi¬ 
cient to have justified him in making the charge 
he did.” 


The parallel is plain. 


37 


AUTHORITIES IN SUPPORT OF PLAINTIFF’S 
ARGUMENT. 


This is an action for libel, based on the publications 
issued by the Grand Master of the Grand Lodge of the 
State of Louisiana. 

An action for libel in Louisiana is based on the statu¬ 
tory provisions of the Civil Code (Article 2315), which 
declares that “every act whatever of man which causes 
damage to another obliges him by whose fault it hap¬ 
pened to repair it.” 


I. 


LIBEL. 

“The term ‘libel’ includes ‘every written publi¬ 
cation which implies or may be generally under¬ 
stood to imply reproach ,dishonor, scandal or ridi¬ 
cule to any person. Such written publication, 
though not charging a punishable offense, is never¬ 
theless libelous if it tends to subject the party 
to whom it refers to social disgrace, public dis¬ 
trust, hatred, ridicule, or contempt.” 

Words and Phrases, Vol. 5. verbo Libel, p. 

4117. Long line of authorities. 

“A libel is a publication, whether in writing, 
printing, picture, effigy, or other fixed represen¬ 
tation to the eye, which exposes any person to 


38 


hatred, ridicule, or obloquy, or which causes him to 
be shunned, or which has a tendancy to injure him 
in his occupation.” 

Weil vs. Israel, 42 La. 955. 

Staub vs. Van. Benthuysen, 36 La. 467, etc. 


The leading libel case in Louisiana is the case of Mil¬ 
ler vs. Holstein, 16 La. 389, in which the principle is de¬ 
clared that 11 other systems of law may be referred to for 
light when the great and leading principles of equity are 
in question and our own laws are silent, but the merely 
aribtrary rules of a foreign system should not be in¬ 
voked;” and, that the Article 2315 of the Civil Code gov¬ 
erns actions for libel and other damage suits. A long line 
of decisions has repeatedly upheld this doctrine. 

33 An. 957: 

“We cannot admit that the Legislative use of 
a common law term has introduced in our system 
a practice in relation to them.” 

40 An. 424: 

“Our Courts are not bound by the technical 
distinctions of the common law.” 

46 An. 1373: 

“Our jurisprudence rejects the common law dis¬ 
tinction pf words actionable per se requiring no 
proof of damage and other words slanderous in 
tendency, but exacting proof of damage.” 


39 


48 An. 914: 

4 4 That the charge preferred against the plain¬ 
tiff comes clearly within that principle will not 
be denied—could not be, under the defendant’s 
answer, in view of the fact that under our law and 
jurisprudence the Courts of this State are not 
bound by the technical distinction of the common 
law, etc.” 


Special attention is called to the case of Warner vs. 
Clark & Company, 45 An. 863, read by counsel in his ar¬ 
gument in this case: 

‘ 1 Under the law of Louisiana libel is a quasi of¬ 
fense, actionable under the broad provisions of 
the Code ‘Every act whatever of man that causes 
damage to another obliges him by whose fault it 
happens to repair it.’ Sportono vs. Fourichon, 40 
An. 424. 

‘‘ Our Courts are not bound by the technical dis¬ 
tinctions of the common law as to words action¬ 
able per se and not actionable per se. Miller vs. 
Holstein, 16 La. 389; Feraz vs. Foote, 12 An. 894; 
Spotorno vs. Fourichon, 40 An. 424. 

“The extent of damage to credit is an inferential 
fact arrived at only by an examination of all the 
circumstances in a case and cannot be the subject 
of direct proof. Damages or injury may be in¬ 
ferred from the nature of the words written and 
from the circumstances under which they were 
written without the necessity of special proof. 
Miller vs. Holstein, 16 La. 389; Daley vs. Van Be- 
thuysen, 3 An. 69; Tresca vs. Maddock, 11 An. 206; 
Class vs. N. 0. Times, 27 An. 214; Spotorno vs. 
Fourichon, 40 An. 424.” 


40 


Jozsa vs. Moroney, 125 La. 813: 

“It is not necessary in matters of libel that the 
defamation should be made known to the public 
generally, or even to a considerable number of 
persons. It is sufficient if it be communicated to 
only one person other than the person defamed. 

“No special damages need be proved. The ac¬ 
tual pecuniary damages in an action for libel can 
rarely be proved and is never the sole rule af as¬ 
sessment. Mental suffering alone can be made the 
basis for damages.’’ 

Graham vs. Western Union Tel. Co., 109 La. 1070: 

“Suit against a telegraph company for failure 
to deliver a message to a mother announcing the 
mortal illness and approaching death of a son. 
The suit was dismissed in the Court of Appeal 
upon an exception of ‘no cause of action,’ for the 
reason assigned that ‘mental pain and anguish re¬ 
sulting from simple actionable negligence is not 
sufficient basis for an action for damages, if un¬ 
attended by injury to person, property, health, or 
reputation.’ 

‘ ‘ The exception should have been overruled. Un¬ 
der the laws of Louisiana, it is not well grounded. 
The judgment is reversed, and the cause remanded 
to the Court of Appeal, to be by it passed on upon 
the merits.” 

And the attention of the Court is respectfully called 
to the paragraph on page 1072, beginning: 

“It is useless for us to refer to the decisions 
of Courts exercising functions where the common 



41 


law prevails in regard to which we have to be 
controlled by local law, etc.” 

And also to the paragraph in the same decision, on 
page 1074, beginning: 

“Mental pain and suffering, as to their exis¬ 
tence, are certainly as actual, clear and positive 
as are intellectual enjoyment and gratification, 
etc.” 

107 La., at page 699, the Court cites the case of Miller 
vs. Holstein, and again discards the technical rules of the 
common law and states: 

“This declaration has been repeated a number 
of times since.” 


Martin vs. Picayune, 115 La., 979, where a newspaper 
published of a physician that by his great skill he had 
cured a young woman afflicted by a very serious di¬ 
sease and the physician sued for libel, held that the peti¬ 
tion set up a good cause of action. 

In Lescale vs. Schwartz, 116 La., 293, Mr. Justice Pro- 
vosty speaking for the Court, declared that: 

“The rule in this State as to responsibility for 
injuries is statutory.” 

And quoting from the Civil Code he held that, 

“Every act whatever of man that causes dam¬ 
age to another obliges him by whose fault it hap¬ 
pened to repair it.” 


42 


In Dickinson vs. Hathaway, 122 La., 647, Mr. Chief 

Justice Breaux, speaking for the Court, said: 

“Any person who publishes a defamatory letter 
concerning another so as to bring him into con¬ 
tempt, ridicule or hatred (black-letters ours), is 
guilty of libel.’’ 

And the same Justice in Morasca vs. Item Pub. Co., 126 
La., 426, held that: 

“Legal malice is defined as an act growing out 
of the wicked or mischievious intention of the 
mind; an act showing a wanton inclination to mis¬ 
chief, an intention to injure or wrong, and a de¬ 
praved inclination to disregard the rights of 
others.” 


n. 


Even the common law makes the distinction between a 
libel and a slander. See Newell on Slander and Libel, 
p. 43, on which a libel is defined, and p. 84, on which 
a slander or oral defamation is defined. 

Under the one, libel, no special damages need be proved, 
whether the words are libelous per se or not, and under 
the other, slander, it is essential if the words are not ac¬ 
tionable per se. 

In the digest of American cases cited in the above 
work, on page 50 paragraph 34, it has been held libelous 
to publish of a man in writing or print “he is a hog”; to 
call an attorney a “shyster.” To call a man a “skunk.” 
The charge a person with being “a drunkard,” “a cuck 





43 


old,” “ a tory.” To designate an editor of a neighbor¬ 
ing newspaper “an ill-natured manikin,” “a mouse most 
magnanimous, ” “ a vermin small . 9 9 And on page 58, di¬ 
gest of English eases, paragraph 1, it is libelous to write 
and publish of a man that he is an “an infernal vil- 
lian,” “an impostor,” “a hyprocite,” “a frozen 
snake.” In paragraph 3, ironical phrase may be a libel 
calling an attorney “an honest lawyer.” To impute to 
a Presbyterian “gross intolerance” in not allowing his 
hearse to be used at the funeral of his Roman Catholic 
servant. Page 60, paragraph 10, it is libelous to call a 
man a “black-leg” or a “black sheep.” 

Newell p. 77: 

“Libels which hold a man up to scorn and ridi¬ 
cule, and to feelings of contempt or execration, im¬ 
pair him in the enjoyment of general society, and 
injure those imperfect rights of friendly inter¬ 
course and mutual benevolence which man has 
with respect to man.” 


Illustrations, (page 78): To state in writing that a 
man “has turned into an enormous swine and lives on 
lame horses” and “will remain a swine the rest of his 
days” is libelous. 

Digest of English cases, on the same page, paragraph 

1 : 

“Scandalous matter is not necessary to make a 
libel. It is enough if the defendant induce an ill 


44 


opinion to be had of the plaintiff, or to make him 
contemptible or ridiculous. ’ ’ 

“To say of a man he is a dishonest man is not 
actionable, but to publish so or to put in upon posts 
is actionable. Skinner 124.’ ’ 


III. 

ACTS COMPLAINED OF; ACTS OF THE GRAND 
LODGE. 


Townsend on Slander and Libel, Sec. 265: 

“If an officer, etc., is guilty of slander, he is per¬ 
sonally liable. But the publication of a libel by 
a corporation makes it liable.’’ 

10 Cyc. 1067: 

“Corporations are estopped from repudiating 
the acts of its officers or agents, within apparent 
scope of duties.” 

10 Cyc. 1203: 

“Corporations responsible for torts, same foot¬ 
ing as individuals.” 

“Liable for acts of agent even if he exceeded 
his orders, or; without orders, or, 

“1205, against orders.” 


If its lawfully constituted agent publish a libel of and 
concerning any person, while acting unlawfully, but 


45 


within the apparent scope of his authority, the corpora¬ 
tion is liable to respond in damage therefor. 

The edicts complained of are therefore the acts of the 
corporation, directed against the plaintiff, by its duly con¬ 
stituted agent, within the scope of his duties and the 
corporation is responsible for his official acts. (See Tr. 
198.) 


“Qui facit per alium facit per se.” 


IV. 


CHARITABLE ORGANIZATION. 

It is claimed by counsel for defendant, and with appar- 
rent sincerity that being organized under the law of 
benevolent and charitable institutions, without stock or 
capital, the defendant is exempt from liability to respond 
for its torts. 

Suffice it to say that exemption from execution of 
judgment against the corporation is not granted to it by 
its charter and no such exemption nor any other can be 
pleaded or exercised except when specially granted by 
its Sovereign, the State of Louisiana. And this is shown 
by the fact that it required a special act of the Legisla¬ 
tion, Act 225 of 1855, to exempt the corporation from 
State and Parish taxation of its hall, conditioned with the 
proviso, “so long as it (the hall) is occupied as the Grand 
Lodge of the A. Y. Masons. 


46 


There is no reason, in law or otherwise, why such a cor¬ 
poration should be exempt from liability for its torts 
any more than a minister or a priest can shield himself 
from the consequences of his wrongs, because he has de¬ 
voted his life to pious or charitable purposes. 


V. 


DOCTRINE OF CONTRIBUTORY NEGLIGENCE AS 
APPLIED TO THIS CASE BY DEFENDANT. 


Counsel for defendant invoxes the doctrine enunciated 
in the case of Van Benthuysen vs. Bigney, 36 An. 38; and 
offered pamphlet D-2, to show that Bayliss had retaliated 
in kind: 


4 4 One who is himself at fault cannot recover 
damages from another who has retaliated in kind, 
although the latter was not justifiable in law, and 
this holds good in spite of the truism that one 
wrong does not justify another.” 


This defense has not been pleaded, and parenthetically 
may be said to be the only defense known to our law 
which his voluminous answer does not make—and this 
omission is fatal under our jurisprudence. 

Furthermore the case cited above cannot apply to this 
case. It was a case where an editor of a paper sued 
another editor of another paper. Both had been libel¬ 
ing one another for some time when finally one seemed to 


47 


have worst of the fray and he sued his adversary. The 
Court decided the case on the the theory that 

“a man who, himself, commenced a newspaper 
war, cannot subsequently come to the Court, as a 
plaintiff, to complain that he has had the worst of 
the fray.” 

The case is not parallel. 

Odgers on Slander and Libel, 228, 219. 


The defendant in the present case could have avoided 
the mischief by limiting its declarations in the edicts, to 
a statement that it did not recognize the council of 
which Mr. Bayliss is the head and calling upon those who 
had joined it, to recant, without assailing the character of 
Mr. Bayliss and without hurling the libelous epithets at 
him personally. 

Mr. Bayliss had not libeled anybody, much less the 
Grand Lodge of Louisiana, before the edicts were issued 
nor even after for that matter. His statement was di¬ 
rected against Mr. Drew and he alone can complain or 
could have sued on the publication D-2, if it gave 
him a cause of action. Counsel for defendant will 
certainly not contend that the Grand Lodge can have a 
cause of action against Mr. Bayliss, based on that publica¬ 
tion. 

4 4 Evidence to show contributory negligence will 
be excluded when no such defense has been plead¬ 
ed.” 


Bulchner vs. City, 112 La. 699. 


48 


“ Though the plaintiff may have been guilty of 
negligence and although that negligence may in 
fact have contributed to the accident, yet if the 
defendant could, in the result by the exercise of 
proper care and diligence have avoided the mis¬ 
chief which happened, the plaintiff’s negligence 
will not excuse him. That the doctrine thus enun¬ 
ciated and affirmed by the English Courts ia 
thoroughly supported in this country, there can be 
no doubt.” 

McClanahan vs. R. R. Co., Ill La. 781, 791. 


PRIVILEGED COMMUNICATIONS. 


Newell, p. 477, Par. 65: 

“Where a person, acting under a sense of duty, 
makes a communication which he reasonably be¬ 
lieves to be true, he must be careful not to be led 
away by his honest indignation into exaggerated 
or unwarrantable expressions. The privilege ex¬ 
tends to nothing which is not justified by the oc¬ 
casion. 9 7 

Again, on p. 509, Par. 108: 

“A communication made by a person is privileg¬ 
ed which a due regard to his own interest renders 
necessary . He is entitled to protect himself. In 
such cases, however, it must appear that he was 
compelled to employ the words complained of. If 
he could have done all that his duty or interest de¬ 
manded without libeling or slandering the plain- 


49 


tiff, the words are not privileged. It is very sel¬ 
dom necessary in self-defense to impute evil 
motives to others or to charge your adversary with 
dishonesty or fraud /’ 

On page 394, Par. 4: 

4 ‘ The principle on which privileged communica¬ 
tions rest, which of themselves would otherwise be 
libelous, imports confidence and secrecy between 
individuals, and is inconsistent with the idea of 
communication made by a society or congregation 
of persons, or by a private company or corporate 
body.” 

Merrill, on Newpaper libel at page 59: 

4 ‘ Defendant must sustain burden of proving that 
the occasion was privileged. 

4 4 It may be compared to one who keeps a dan¬ 
gerous animal, and who is bound to so keep it, that 
it does no harm—if harm ensues he must answer 
for it.” 


VI. 

INCONSISTENT PLEADINGS. 

The trial Judge dismissed the motion made by plain¬ 
tiff to compel the defendant to elect as to which defense 
it relied upon—having pleaded a general denial (Tr., p. 
11), justification (Tr., p. 17), and claimed that the circu¬ 
lars were privileged, (Tr., p. 18). 


50 


We respectfully submit that the learned Judge erred 
in refusing the motion, as this Court has repeatedly held 
that: 


4 ‘In an action in damages for slander the only 
defenses are either a denial, or justification or 
a confession under mitigating circumstances. 
There is no such thing in law as a half-way jusi- 
fication. An answer which sets forth all these de¬ 
fenses equivocates and is inconsistent.'’ 

Williams vs. McManus, 38 A. 161; 10 A. 231; 
28 A. 238; 44 A. 938; 104 La. 505; 106 La. 
258; 130 La., Schwing vs. Dunlap, not yet 
reported. 


Considering the general denial (Tr., p. 11) and our 
objection (Tr., p. 59 and 61) to all testimony tending to 
prove justification, we ask that all testimony offered 
thereunder be disregarded by your Honors. 


vn. 

JUSTIFICATION. 

The defendant has attempted to justify, or at least les¬ 
sen the libelous meaning of the words used, by showing 
that they had been applied to other persons under other 
circumstances. The fact that these words may have been 
used by others under other circumstances does not neces¬ 
sarily justify the defendant in using them in this case 
against the plaintiff. He must prove the truth of his 


51 


charges as applied to this plaintiff and can certainly 
not do so by offering the ex parte conclusion of Lodges 
from other States and historical statements made by au¬ 
thors who may be prejudiced or without giving the plain¬ 
tiff an opportunity for cross-examination or rebuttal. 

Townsend on Libel and Slander, par. 212 and 
Note (2nd. Ed.) 

‘ 4 There is no such thing in law as a half way jus- 
tification. ,, 


In the instant case there is not a scintilla of proof 
that Mr. Bayliss has “peddled’’ degrees; on the contrary 
the learned counsel for defendant himself admits that he 
was misinformed. (Tr., p. 131.) 

By Mr. Buck: 

“I would like to see that commission.” 


By Mr. Hubert: 

“The point is, that Mr. Bayliss did not confer 
the degrees.” 


By Mr. Buck: 

“That is the point that is irrelevant, there is 
nothing here before the Court to show that Mr. 
Bayliss is responsible for what was done by his 
deputy; he sent his representative here. I was 

under the impression that Mr. Bayliss himself con¬ 
ferred the degrees, but I was misinformed.” 


52 


It is respectfully submitted that defendant’s plea of 
justification fails completely in this respect and with it 
the plea of privilege. 

For the same reason, as held in a recent decision of this 
Court in Vordenbaumen Lumber Co., vs. Parkerson, that 
the words complained of must be proved strictly as al¬ 
leged in the petition, so must the defendant pleading justi¬ 
fication, prove the truth of the libelous statements made 
by defendant and proved by the plaintiff. 


VIII. 

BURDEN OF PROOF ON DEFENDANT. 

“ Having admitted the charge (Tr., p.), and 

issuance of libelous edicts, the burden of proof that 
he acted, upon probable cause, in honest belief, 
based upon reasonable grounds, rests upon defend¬ 
ant.” 

Vinos vs. Insurance Co., 33 An. 1265; Staub 
vs. Van Benthuysen, 36 An. 467; Williams 
vs. McManus, 38 An. 161; Sibley vs. Lay, 
44 An. 936. 

The precise charge must be justified. 

n There is no better settled point in slander than 
this; the plea must justify the same words con¬ 
tained in the declaration. It is not enough to 
justify the sentiment contained in the words . 9 9 

Ency P. and P. Vol. 13, pp. 80, 81. 



53 


IX. 

DAMAGES. 

See Civil Code 1934, Par. 3. 

Words & Phrases, Vol. 1, p. 156: 

“Actual damages in an action of libel are such 
as the plaintiff suffered, if any, on account of the 
libel or injury, to the feelings and character, or 
anguish of mind by shame; mortification and de¬ 
gradation caused by the publication. Grace vs. 
McArthur, 45 Wis. 518, 521; 76 Wis. 641. 

“The term ‘actual damages’ as used in an 
action for libel is broad enou ghto include damages 
for loss of reputation, shame, falsehood, etc., etc. 
Hearne vs. DeYoung, 132 Cal. 357.” 

“Injuries to the feelings, and one’s social stand¬ 
ing are not susceptible of a precise measurement. 

still, in cases of this kind or class, such injuries are 
recognized as legitimate ground of action.” 

Dufort vs. Abadie, 23 An. 280; 19 An. 322; 
17 An. 64; 38 An. 164, Williams vs. Mc¬ 
Manus; 109 An. 1070, Graham vs. West¬ 
ern Union Telegraph Co. 


Weil vs. Israel, 42 An. 955: 

“It is conclusive presumption of law that dam¬ 
ages have ensued from the mere publication of such 
libelous statement, and, therefore, no actual dam¬ 
age need be proved. Proof of particular or actual 
damages is only required to enhance a recovery. 


54 


“It is true that injuries to one’s feelings and 
social standing are not susceptible of precise ad¬ 
justment, but such injuries are recognized as a legi¬ 
timate ground of action for reasonable indemnity. ’’ 

17 An. 64; 19 An. 322; 23 An. 280. 

Mequet vs. Silverman, 52 An. 1369: 

4 4 Malice upon the one hand and injury upon the 
other will be presumed (p. 1373.) Law implies that 
kind of malice which means and is expressed by a 
grossly negligent or wanton diregard of the rights 
of others; and while evidence as to actual malice 
and as to special damages or specific injury was ad¬ 
missible, it is not essential to recovery.” (Long 
line of authorities.) 

McClure vs. Martin, 104 La. 496: 

4 4 Damages are necessarily due for libel and slan¬ 
der. The law presumes damages to follow from 
injurious words spoken or uttered against the 
plaintiff. (Se authorities, p. 507.) 

This Court has granted the following sums as compen¬ 
sation in the following cases of slander and libel: 

$5,000.00 for libel. Schwing vs. Dunlap, 130 La. 

$5,000.00 for libel, Luzenberg, vs. O’Malley, 116 La. 699 

$1,000.00 for malicious words, 19 An. 322. 

$1,000.00 for slanderous epithets, 17 An. 64. 

$500.00 for slanderous words, 38 An. 162. 

$500.00 for slanderous words, 104 La. 180. 

Simpson vs. Robinson, $25.00 held inadequate, in¬ 
creased to $500.00. 

$5000.00 for libel. Schwing vs, 


La. 





55 


X. 

Then, it is believed, the mind and unbiased judgment 
of the Court will be led to consider what substantial 
amount in dollars and cents would be reasonable com¬ 
pensation to plaintiff, in view of bis presumed and proven 
good standing among men, and in view of bis forty years 
of honorable masonic life among masons; bis undisputed 
blameless life as a citizen. What sum of money ought 
to partially compensate him for being so publicly de¬ 
famed, for all agree that it is impossible to measure in 
money full compensation. 

The Court will then consider the standing record, pub¬ 
lished to the world. There is no telling what barm may 
result or bow bis good name may suffer after be is gone. 

The Court will, we respectfully submit see that the 
oowerful force of sixteen thousand members of the Craft 
has been leveled against a single individual—in concen¬ 
trated, deliberate aim and expressed purpose to 4 ‘crush’’ 
him; and with absolute disregard for his rights either as 
a Mason or a man, to bring him into public contempt, 
ridicule and hatred. He bad not wronged one of them. 
The Court will not forget that the Grand Lodge of Louisi¬ 
ana, voluntarily tendered its services and wonderful 
strength for the destruction of both the man and his 
competitive Rite. 

‘‘The same reasons that the Supreme Court found in 
the Fatjo case, 109 La. 699, for increasing the damages 
found by the jury because of the brutal act of slandering 
one in the family presence, is found here in the fact that 


56 


the wanton malignment was by the whole masonic 
family here upon the character of a member of the general 
family. The thrust was far more stinging to plaintiff and 
much more effective in its intended injury than if it had 
been made by a non-masonic body. In direct accusa¬ 
tion and sneaking innuendo it could not be made more 
powerful than when coming from a brotherhood. 

Fat jo called Mrs. Seidel a “thief” in the presence of 
her family only; a jury awarded her $200.00, and this 
Court affirmed the finding but increased the damages to 
$500.00. That was an action for slander, and slander is 
considered in law not one-half as offensive as libel. In 
the case at bar we have publication equivalent to 
“thief,” read by many thousands and doubtless taken 
notice of and discussed by as many families. We invoke 
the proportionate rule, and we respectfully submit that 
the Court should make the penalty severe enough to for¬ 
ever deter others from defaming the character of citi¬ 
zens under similar circumstances. 

Let the punishment fit the crime. 

We respectfully ask that the judgment of the lower 
Court be set aside, and for a judgment in favor of plain¬ 
tiff and appellant for such sum as this Court, in its dis¬ 
cretion, after considering the nature, and circumstances 
of the case, will deem proper and sufficient. 

Respectfully submitted, 

L. A. HUBERT, 

MONROE McCLURG, 
Attorneys for Plaintiff and Appellant. 





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